DataMules Blog

Software Patents are Self-Defeating

Whenever I mention our product to someone for the
first time, I often get asked "are you going to patent it?". I think people
ask this question because they are not familiar with software packages similar
to ours, so they think it is "unique" and therefore patentable. I always let
them know that we will not be pursuing a patent because we do not believe in
software patents (I doubt whether our software could be patented anyway, but if
you can patent a linked list,
perhaps it could be after all). Rather than regurgitating our reasoning over
and over again, though, I thought I would write a post that would let me
articulate more clearly why we believe software patents are self-defeating. I
won't go into the "morality" of software patents, but rather why they
don't help you achieve what you want anyway.

To start, most people believe that patents give you protection from other
people trying to steal your ideas. For example, pretend that you have just
created a system whereby your customers could place an order on your website
with one click, rather than having to
go through the normal process of using a shopping cart to checkout. You
believe that this technology will give you an advantage over your competition,
so you file a
patent.
When your competition copies your idea, you sue
them and if the judge sees it your
way, he forces your competition to stop using a one-click checkout system.
So what does your competition do? They make customers click
twice
to checkout instead of once. This is obviously a trivial (and fairly well
known) case, but the takeaway is important:
oftentimes your competition can work around your patent fairly easily. So you
set out to stop others from copying you and all you do is force them to use a
slightly different technology. You end up wasting time and money to file the
patent and sue your competition - all for naught.

This happens to lead us into the second reason why software patents
are self-defeating (at least for small to mid-sized organizations): you need to
have money and resources to defend your claim. The only way to enforce a
patent is by suing the infringing party. There is no police force that will
arrest the infringing party, nor any government agency that will work on your
behalf to defend your rights. You need to hire a law firm and have them file
suit. As a small to mid-sized organization, you will likely not have the
resources to defend your claims. Even if you did, wouldn't you rather be
spending that money on making the competition obsolete by providing the
best product you possibly can? I.e., if you are a small to mid-sized
organization, that indicates that you have not yet "hit it big". Presumably,
if you are willing to file a patent, I am willing to bet that your goal is to
grow your organization so you do "hit it big". Suing the competition is not
going to get you there; building a better product with better marketing
will. So instead of focusing on the patent, focus on the product.

The last point to make, one which has been hinted at, is that patents
are a distraction from what you should be doing - crushing the competition by
building the best product that your customers want. People don't buy patented
crap. They buy products that make their lives easier. So I would rather spend
every waking resource I have on doing just that - building something that
people want and marketing it to the best of my ability. If I am focusing on
filing a software patent, keeping an eye out for infringers, working with our
lawyers to sue competitors, etc., then I am not focusing on my customers; I am
focusing on myself. And our customers don't care about us as an
organization - they care about what we provide and/or do for them (as they
should!). So patents don't help customers, they help companies selling to
those customers.

In the end, I doubt owning a patent on something will have any
impact on our ultimate success or failure. Like "ideas", patents are fairly
worthless without execution (with the obvious exception that you may actually
be able to monetize patents). I'm sure that software patents have helped some
companies fend off competitors, increase market share and "make it big", but
that is not the type of company that we wish to be. Instead, we would
rather be the company that others emulate because of their kick-ass technology,
amazing culture, and tireless focus on the customer. Patents simply don't get
us there.